Protest of Defense Construction Supply Center Proposed Contract Award

B-206872: Apr 7, 1982

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A firm protested the proposed award of a contract contending that the awardee was neither a regular dealer nor a manufacturer as defined in the Walsh-Healey Act and was therefore ineligible for the contract award. GAO does not consider the issue of a bidder's status as a regular dealer or manufacturer within the meaning of the Walsh-Healey Act, since such matters are for the contracting agency's determination. The protester also questioned whether the awardee intended to comply with the representation in its Buy American certification that domestic source end products would be furnished. If a bidder excludes no end products from the Buy American certificate in its bid and does not indicate that it is offering other than domestic source end products, as the awardee apparently did in this case, the acceptance of the bid results in an obligation on the part of the bidder to furnish domestic source end products. Compliance with that obligation is a matter of contract administration and has no effect on the validity of the contract award. To the extent that the protester suggested that the awardee submitted a below-cost bid, acceptance of unreasonably low or even below-cost bids by the Government is not illegal and does not provide a basis upon which to challenge an award absent a finding that the agency is not responsible. The preaward determination of responsibility would have included a review of the awardee's quality control and accounting systems, which the protester also challenged. GAO does not review such affirmative determinations of responsibility except in circumstances which were not applicable in this instance. Accordingly, the protest was dismissed.